Attorney: Kansas schools measure could spur new lawsuit

A proposed amendment to the Kansas Constitution designed to stymie a pending education funding lawsuit won't end the litigation and could face its own legal challenge, a lawyer for the students and public school districts suing the state says.

A proposed amendment to the Kansas Constitution designed to stymie a pending education funding lawsuit won't end the litigation and could face its own legal challenge, a lawyer for the students and public school districts suing the state says.

Attorney John Robb criticizes the proposal as a “power play” by conservative Republican legislators upset with past Kansas Supreme Court rulings that the state wasn't spending enough money on its public schools. The measure would add a new sentence to the constitution's education article, declaring that the Legislature has the exclusive power to set spending on schools.

The GOP-dominated Senate Judiciary Committee plans to have hearings later this month on the proposed amendment. It was introduced last week, less than a month after a three-judge panel in Shawnee County ruled that the state isn't meeting its constitutional obligation to suitably fund schools. Legislators would have to boost annual spending by at least $440 million to comply.

But Robb, from Newton, said even if lawmakers put the measure on the ballot and voters approve it, his clients still have legal issues to pursue, including whether legislators were arbitrary in their decisions about school funding. Robb represents 32 students, their parents and guardians and the Wichita, Hutchinson, Dodge City and Kansas City, Kan., school districts.

Robb also said the proposed statement explaining the measure for voters is so misleading – and, in his mind, designed to push them to approve it – that it opens the measure to being invalidated by the state Supreme Court. Robb did not rule out his clients filing such a challenge if the measure is placed on the ballot or even after its approval by voters.

“The Legislature ought to be focused on what's good for kids and not focused on this power play over who is the supreme decision-maker,” Robb told The Associated Press in an interview. “They're trying to fundamentally change our system of government in Kansas.”

Senate Judiciary Committee Chairman Jeff King, an Independence Republican who helped draft the proposed amendment, was skeptical that it's vulnerable to a potential legal challenge. He said the amendment, if adopted, would prevent the courts from stepping into decisions that the constitution meant to reserve for elected officials.

“Whether the Legislature is making suitable provision for the financing of education rests in the hearts and minds of Kansas voters and at the ballot box,” King said.

The education article says that the Legislature shall “make suitable provision for finance” for the state's “educational interests.” The proposed amendment would add a new sentence saying, “The financing of the educational interests of the state is exclusively a legislative power” and “shall be established solely by the Legislature.”

A proposed constitutional change must be adopted by two-thirds majorities in both chambers and approved by a simple majority of voters in a statewide election. Supporters hope the measure will be on the ballot no later than the August 2014 primary.

The state Supreme Court has said the Legislature is constitutionally obligated to finance a suitable education for every child, suggesting in 2005 and 2006 rulings that the state could face continual increases in spending. Lawmakers dramatically increased spending on schools after those rulings but backed away from their promises during the Great Recession, prompting the lawsuit by Robb's clients.

The Shawnee County ruling cited the Legislature's duty under the education article in saying that current school funding is inadequate. The state has appealed it, and it's not clear how quickly the Supreme Court will rule.

But Robb noted that the lower court panel didn't decide claims that lawmakers were arbitrary in the past or that their actions discriminated against some students. The proposed amendment, if adopted, “isn't going to make this lawsuit go away,” Robb said.

“It will impact this lawsuit, but it won't resolve it,” he said.

But King, an attorney who also serves as Senate vice president, said the state's courts don't typically order additional spending to remedy the other issues Robb's clients raise.

“We are letting the voters decide who has final say over appropriations for schools,” King said.

The proposed explanatory statement says that a “no” vote would retain the current constitutional provision on education and that it has been interpreted by the Supreme Court as allowing it to order legislators to spend “whatever amount” for schools the court deems necessary.

Robb said the statement is misleading because in past rulings, the court said the state's school funding system was inadequate and gave lawmakers time to fix it if they increased spending in line with a study the Legislature commissioned. The court didn't make legislative decisions or appropriate money, Robb said.

“If they bend the language politically, as it's currently bent, they run the risk of knocking out the amendment even after it's passed,” Robb said.

King scoffed at the criticism and the idea that the Supreme Court didn't order lawmakers to increase spending.

“That would be the same as saying if a court orders you to pay a speeding ticket, they're really not forcing you to pay the fine, because they're not writing the check,” King said.